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Jowell v. Lind

United States District Court, D. Colorado

November 21, 2014

JODY JOWELL, Applicant,
v.
RANDY LIND, and THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents.

ORDER OF DISMISSAL

LEWIS T. BABCOCK, Senior District Judge.

Applicant, Jody Jowell, is a prisoner in the custody of the Colorado Department of Corrections who currently is incarcerated at the Arkansas Valley Correctional Facility in Ordway, Colorado. On August 15, 2014, Mr. Jowell filed pro se an Application for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 (ECF No. 6). He is challenging the validity of his conviction in Saguache County District Court Case No. 03CR7. Mr. Jowell has paid the $5.00 filing fee.

On September 12, 2014, Magistrate Judge Boyd N. Boland entered an order (ECF No. 10) directing Respondents to file a pre-answer response limited to addressing the affirmative defenses of timeliness under 28 U.S.C. § 2244(d) and exhaustion of state court remedies under 28 U.S.C. § 2254(b)(1)(A). On September 30, 2014, after being granted an extension of time, Respondents submitted their pre-answer response (ECF No. 14). On October 8, 2014, Mr. Jowell submitted a reply (ECF No. 15).

The Court must construe Mr. Jowell's filings liberally because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as an advocate for a pro se litigant. See Hall, 935 F.2d at 1110. For the reasons stated below, the Court will dismiss the action as barred by the one-year limitation period.

Mr. Jowell was convicted on May 21, 2004, by a jury in Saguache County District Court Case No. 03CR7 of two counts of sexual assault on a child by a person in a position of trust and one count of sexual assault on a child as part of a pattern of abuse. ECF No. 14, ex. A ( People v. Jowell, 199 P.3d 38 (Colo. Ct. App. 2008)) at 1. On July 21, 2004, the trial court sentenced him to sixteen years of incarceration. ECF No. 14 at 5; ex. A at 1.

Mr. Jowell appealed directly from his convictions and sentences, which the Colorado Court of Appeals affirmed on January 24, 2008. ECF No. 14, ex. A at 1. On June 30, 2008, the Colorado Supreme Court denied certiorari review. ECF No. 14, ex. B. Mr. Jowell did not seek certiorari review in the United States Supreme Court.

On December 17, 2008, Mr. Jowell filed a postconviction motion for sentence reconsideration pursuant to Rule 35(b) of the Colorado Rules of Criminal Procedure, which the trial court denied on December 22, 2008. ECF No. 14, ex. I (state court register of actions) at 1. He did not appeal from the denial.

On May 13, 2010, Mr. Jowell filed a postconviction motion pursuant to Colo. R. Civ. P. 35(c) (ECF No. 14, ex. C), which the trial court summarily denied on December 13, 2010, as unfounded. ECF No. 14, ex. I at 1; ex. D (Order Denying Defendant's Petition for Postconviction Relief Pursuant to Crim. P. Rule 35(c) as Unfounded). Mr. Jowell appealed from the trial court's order to the Colorado Court of Appeals, which affirmed in an unpublished opinion. ECF No. 14, ex. F ( People v. Jowell, No. 11CA1096 (Colo. Ct. App. Apr. 4, 2013)). On January 27, 2014, the Colorado Supreme Court denied certiorari review. ECF No. 14, ex. H.

On August 1, 2014, Mr. Jowell attempted to initiate the instant action by filing a motion titled "Motion for Fed. Rule 60(b)(4)." ECF No. 1. On August 15, 2014, after being ordered to cure certain deficiencies in the action, Mr. Jowell filed his habeas corpus application asserting the following claim: "Disqualification of the District Attorney's Office, Invalid Charging Document, Lack of Subject Matter Jurisdiction, Void Judgment." ECF No. 6 at 5.

Respondents argue that this action is barred by the one-year limitation period in 28 U.S.C. § 2244(d). Section 2244(d) provides as follows:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made ...

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